This opinion is subject to
further editing.If published, the
official version will appear in the bound volume of the Official
Reports.

A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals.SeeWis. Stat. § 808.10 and Rule 809.62.

Appeal No.

2011AP2549-CR

Cir. Ct. No.2009CF4648

STATE OF WISCONSIN

IN COURT OF
APPEALS

DISTRICT I

State of Wisconsin,

Plaintiff-Respondent,

v.

Melvin Deonte Elim,

Defendant-Appellant.

APPEAL
from a judgment and an order of the circuit court for Milwaukee County:daniel
l. konkol and charles f. kahn,
jr., Judges.Affirmed.

Before Fine, Kessler and Brennan, JJ.

¶1PER CURIAM. Melvin Deonte Elim appeals from a judgment of conviction entered after
a jury found him guilty of possessing a firearm as a person previously
adjudicated delinquent for an act that would be a felony if committed by an
adult.He also appeals from an order
denying his motion for postconviction relief.[1]On appeal, Elim claims the guilty verdict is
inconsistent with a not guilty verdict that the jury returned on a companion
charge, he was denied the right to confront a witness against him, and his
trial counsel was ineffective. We reject
his contentions and affirm.

BACKGROUND

¶2On October 7, 2009, Elim shot
Brandon Hampton. With the consent of
Elim’s wife, police searched Elim’s home the next day and found a pistol.The State charged Elim with two crimes:(1) first-degree recklessly endangering
safety of another person by use of a dangerous weapon; and (2) possessing a
firearm as a person previously adjudicated delinquent for an act that would be
a felony if committed by an adult.At
the initial appearance on October 13, 2009, Elim advised the magistrate and the
State that the case involved “self-defense issues.”He reiterated that position in two subsequent
bail hearings.He demanded a jury trial.

¶3The
State collected DNA samples from Elim and from the pistol found in his home. The record reflects that, in January 2010,
Elim received a copy of the Wisconsin Crime Laboratory report of the DNA test
results. In June 2010, approximately one
month before trial began, the State filed notice that it intended to present
testimony about the DNA test results from Wisconsin Crime Laboratory analyst
Gretchen DeGroot.The notice and the
accompanying report, prepared by crime laboratory analyst Nicholas A. Homa,
reflect that Elim was a potential contributor of DNA collected from the pistol.

¶4At
the outset of the trial, Elim gave an opening statement disclosing his theory
of self-defense as to both charges.He
explained:“we’re not going to say []
Elim wasn’t briefly in possession of a gun, nor are we going to say he didn’t
shoot” Hampton.Elim went on to tell the
jury it would conclude that “there was no alternative here to what [he] did.”

¶5The
State presented evidence that Elim shot Hampton, and a police officer described
finding a handgun in Elim’s home.DeGroot then testified for the State as an expert witness.She told the jury that she is employed by the
Wisconsin Crime Laboratory in the DNA analysis unit as an advanced forensic
scientist.She described the laboratory
tests that her fellow analyst, Homa, conducted on DNA samples collected from
Elim and from the pistol found in his home.DeGroot next testified that she performed a peer review of Homa’s work. She explained that her review involved
examining all of the case notes and data collected and then drawing a
conclusion about the donor of the DNA found on the pistol.She testified that, in her opinion, Elim
could not be excluded as a potential donor of the genetic material found on the
pistol.

¶6Elim
testified on his own behalf.He admitted
shooting Hampton.Elim said that on the
afternoon of the shooting, he was visiting relatives at his mother’s home.During the visit, Elim and members of his
family went outside to confront Tremese Hampton, who had fought with one of
Elim’s cousins earlier that day.[2]Elim told the jury that, shortly after
stepping outside the house, he accepted a gun from one of his companions because
he “ain’t taking no chances.”Soon
thereafter, he saw Hampton, Tremese Hampton’s brother, run out of the bushes
waving a gun.Elim described struggling
with Hampton and reaching for Hampton’s gun, which went off.Elim testified: “that’s when I fired.”

¶7Elim
admitted that police found the gun he had fired hidden in his home. He also stipulated to his status on October 7,
2009, as a person previously adjudicated delinquent for an act that would be a
felony if committed by an adult.

¶8The
circuit court instructed the jury about, inter
alia, self-defense.The jury found
Elim not guilty of first-degree recklessly endangering safety of another and
guilty of unlawfully possessing a firearm.

¶9Elim
moved for postconviction relief, claiming, as relevant here, that: (1) the guilty verdict on the charge of
unlawfully possessing a firearm must be set aside as inconsistent with the not
guilty verdict on the charge of recklessly endangering safety; (2) the State
violated his right under the federal constitution to confront an adverse
witness when the State presented testimony from DeGroot rather than from Homa;
and (3) trial counsel was ineffective by failing to raise an objection to
DeGroot’s testimony.The circuit court
denied relief without a hearing, and this appeal followed.

DISCUSSION

¶10Elim
asserts that the verdicts in this case are fatally inconsistent.In his view, the jury necessarily determined
that he acted in self-defense when he endangered safety by shooting another
person, and therefore he necessarily acted in self-defense when he possessed a
firearm.He argues that he is thus entitled
to a judgment of acquittal for the latter crime.We disagree.

It has been universally held that logical consistency
in the verdict as between the several counts in a criminal information is not
required.The verdict will be upheld
despite the fact that the counts of which the defendant was convicted cannot be
logically reconciled with the counts of which the defendant was acquitted.

¶11Elim
asserts that he is nonetheless entitled to relief from his conviction because
“the verdicts at issue here are not merely logically inconsistent.They are, in fact, mutually exclusive.”Elim fails to offer any citation supporting
the proposition that his distinction makes a difference in the analysis.We do not consider arguments unsupported by
legal authority.SeeState v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct.
App. 1992).

¶12Elim
next complains that he suffered a violation of the right afforded to him under
the federal constitution to confront his accusers.[3]SeeU.S. Const. amend. VI.Elim contends that DeGroot testified about
the results of DNA tests that she did not personally conduct, and the State
thus deprived him of the right to “confront the witness against him:the analyst who actually conducted the tests.”Elim, however, did not object to DeGroot’s
testimony at trial and thus did not preserve the objection for appellate review.SeeState
v. Ellington, 2005 WI App 243, ¶14, 288 Wis. 2d 264, 707 N.W.2d
907.Accordingly, any challenge must be
considered within the rubric of ineffective assistance of counsel.Seeid.

¶13We
turn, then, to Elim’s final claim, namely, that his trial counsel was
constitutionally ineffective by failing to object to DeGroot’s testimony.To prevail on a claim that trial counsel was
ineffective, a defendant must satisfy a two-prong test requiring proof both
that counsel’s performance was deficient and that the deficiency prejudiced the
defense.SeeStrickland v. Washington, 466 U.S. 668, 687 (1984).To demonstrate deficient performance, the
defendant must identify specific acts or omissions of counsel that are “outside
the wide range of professionally competent assistance.” Id. at 690.To demonstrate prejudice, “[t]he defendant
must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.A reasonable probability is a probability
sufficient to undermine confidence in the outcome.”Id. at 694. We may start our analysis by considering
either prong of the Strickland test, and we need not consider both prongsif
a defendant fails to make a sufficient showing on either one.Id. at 697.

¶14Here,
Elim fails to show that his trial counsel performed deficiently by not
objecting to DeGroot’s testimony.The
right to confrontation applies only to statements that are testimonial.State v. Deadwiller, 2012 WI App 89,
¶7, ___ Wis. 2d ___, ___ N.W.2d ___.Crime laboratory reports of DNA analysis such as the report at issue
here are not testimonial.Seeid., ¶1.Therefore, no constitutional impediment
prevents an expert witness from testifying for the State about the results of DNA
analysis performed by another technician.Seeid.

¶15Moreover,
were we to conclude that the Wisconsin Crime Laboratory report was in some
respect testimonial, we would nonetheless conclude that Elim suffered no
violation of his right to confront witnesses when DeGroot testified about the
DNA analysis.“A defendant’s
confrontation right is satisfied if a qualified expert testifies as to his or
her independent opinion, even if the opinion is based in part on the work of
another.”State v. Barton, 2006 WI
App 18, ¶20, 289 Wis. 2d 206, 709 N.W.2d 93.Here, DeGroot, a forensic scientist,
testified that she examined the data and reached her own conclusion, to a
reasonable degree of professional certainty, that Elim could not be excluded as
a possible contributor of the DNA found on the pistol.

¶16Deadwiller
and Barton demonstrate that Elim suffered no constitutional
deprivation when DeGroot testified about the results of the DNA analysis.Trial counsel thus did not perform
deficiently by foregoing an objection to DeGroot’s testimony on confrontation
clause grounds. See State v. Toliver,
187 Wis. 2d 346, 360, 523 N.W.2d 113 (Ct. App. 1994) (failure to advance a
meritless argument does not constitute deficient performance).

¶17For
the sake of completeness, we have also examined the prejudice component of the Strickland
test.Elim shows no prejudice
flowing from DeGroot’s testimony, because he admitted shooting Hampton.Evidence that Elim’s DNA was on the gun used
in the shooting was thus entirely consistent with Elim’s theory that he fired
the gun in self-defense.The evidence
therefore does not undermine our confidence in the outcome of the trial.SeeStrickland,
466 U.S. at 694.

¶18Elim
suggests that his defense was necessitated by the violation of his constitutional
rights.He implies that he might have
selected a different theory of defense if his trial counsel had objected to
DeGroot’s testimony.A motion for
postconviction relief, however, requires more than such a conclusory
allegation.SeeState v. Allen, 2004 WI 106, ¶15, 274 Wis. 2d 568, 682
N.W.2d 433.A defendant seeking
postconviction relief must offer specific material facts to support a
claim.Id., ¶¶9, 36.

¶19The
suggestion that Elim selected his theory of defense in response to DeGroot’s
testimony lacks any factual support in his motion or the record. Elim explained at his initial appearance in
October 2009 that the case involved self-defense.He reiterated his theory of self-defense in
two subsequent bail motions, one in October 2009 and another in November
2009.These disclosures were far removed
from DeGroot’s testimony at trial in July 2010.Indeed, Elim selected and disclosed his self-defense theory before he
received the DNA test results in January 2010.Thus, the record does not support the proposition that Elim selected a
self-defense theory based on the manner in which the State presented crime
laboratory results to the jury.He shows
no prejudice arising from DeGroot’s testimony.

By
the Court.—Judgment and order affirmed.

This opinion will not be
published.SeeWis. Stat. Rule
809.23(1)(b)5. (2009-10).

[1] The
Honorable Daniel L. Konkol presided over the trial and entered the judgment of
conviction.The Honorable Charles F.
Kahn, Jr., presided over the postconviction proceedings and entered the order
denying postconviction relief.

[2] Elim
testified at trial that he confronted “TJ.”Another witness clarified that “TJ” is a nickname for Tremese Hampton.

[3] Elim
does not suggest that he suffered any violation of the right to confrontation
conferred by Wis. Const. art. I,
§ 7.He therefore forfeited the
issue, and we do not discuss it.SeeState v. Deadwiller, 2012 WI App 89,
¶7 n.1, ___ Wis. 2d ___, ___ N.W.2d ___.